Minister of Citizenship and Immigration, Appellant, v. Léon Mugesera, Gemma Uwamariya, Irenée Rutema, Yves Rusi, Carmen Nono, Mireille Urumuri and Marie-Grâce Hoho, Respondents

Court	Supreme Court of Canada, Canada
Case number	30025
Decision title	Joint reasons for judgment (on appeal from the Federal Court of Appeal)
Decision date	28 June 2005
Parties	Minister of Citizenship and Immigration Léon Mugesera Gemma Uwamariya Irenée Rutema Yves Rusi Carmen Nono Mireille Urumuri Marie-Grâce Hoho
Other names	Minister of Citizenship and Immigration v. Mugesera et al.
Categories	Crimes against humanity, Genocide
Keywords	Crimes against humanity; genocide; murder; deportation; hatred; hate speech; incitement to genocide; Rwanda
Links	Joint reasons for judgment (on appeal from the Federal Court of Appeal)
Other countries involved	Rwanda

Summary

Léon Mugesera, a former politician of the party the National Republican Movement for Democracy and Development (MRND) in Rwanda, fled Rwanda in 1993 – before the actual start of the Rwandan genocide in 1994 – after the authorities had issued an arrest warrant against him for incitement to genocide and murder, as he had given one of the first inflammatory public speeches that eventually led to the genocide. Mugesera, together with his wife and their five children, sought asylum in Canada, which was granted. However, in 1995, the Immigration and Refugee Board became aware of the arrest warrant and issued an order to deport Mugesera to Rwanda for trial.

After several years of litigation, the Federal Court of Appeal held that the deportation order should not have been issued as there was not sufficient evidence that Mugesera had indeed been involved in the Rwandan genocide as alleged. However, the Canadian Supreme Court quashed this decision on 28 June 2005, ruling that the Court of Appeal had applied an incorrect standard of review and that, in fact, the Immigration and Refugee Board had been right all along. The deportation order was affirmed.

Procedural history

Following Mugesera's inflammatory anti-Tutsi speech given on 22 November 1992, the Rwandan authorities issued an arrest warrant against him. Mugesera then fled to Canada, gaining permanent residence in the country in 1993, together with his wife Gemma Uwamariya and children.

In 1995, the Canadian authorities commenced proceedings to deport Mugesera on the basis that by delivering his speech, he had committed incitement to murder, genocide and hatred, and that he had committed a crime against humanity. An adjudicator concluded that the allegations were valid and, therefore, issued a deportation order against Mugesera. The Immigration and Refugee Board (IAD) upheld the decision in appeal. On 10 May 2001, the trial division of the Federal Court dismissedthe application for judicial review on the allegations of incitement to commit murder, genocide or hatred, but allowed it on the allegation of crimes against humanity. However, on 8 September 2003, the Federal Court of Appeal (FCA) reversed several findings of fact made by the IAD, held that the Minister’s allegations against Mugesera were unfounded, and did set aside the deportation order.

The Canadian Ministry of Citizenship and Immigration appealed to the Canadian Supreme Court against the FCA’s decision. On 1 October 2004, a motion to strike was delivered in which the Supreme Court ruled that certain documents and evidence brought by the respondents (Mugesera, his wife and their five children) were not allowed as they constituted fresh evidence which should have been added to the case files earlier. Furthermore, on 28 June 2005, a motion for a permanent stay of proceedings by the respondents, based on the fact that the spouse of one of the judges chaired the War Crimes Committee of the Canadian Jewish Congress (which would, according to the respondents, cause the judge to be biased), was immediately dismissed as ‘unacceptable from every point of view’; the Supreme Court found it an ‘unqualified and abusive attack on the integrity of the judges of the Court’ (p. 4).

Related developments

Initially, Mugesera stayed in Canada, as he kept filing petitions challenging his deportation based on the principle of non-refoulement (which prohibits states from handing over individuals to a state where they would be persecuted, tortured or otherwise inhumanely treated). Nevertheless, on 23 January 2012, after having exhausted all possibilities of appeal, Mugesera was finally deported to Rwanda where he was charged with, among other things, incitement to commit genocide.

The trial before the Kigali High Court commenced on 17 January 2013, and on 15 February 2013, Mugesera pleaded not guilty to all the charges.

Legally relevant facts

On 22 November 1992, Mugesera, a hard-line Hutu politician for the National Republican Movement for Democracy and Development, delivered a speech in Rwanda to a crowd of around 1,000 people at a meeting of the party (p. 4). The content of the speech was believed to have included language inciting racial hatred, and according to experts it was one of the first public speeches to voice the need to exterminate the Tutsi population. Mugesera's alleged references to the Ethiopian 'origins' of the Tutsi in Rwanda is also regarded as evidence of why thousands of corpses were thrown into the Nyabarongo river during the 1994 genocide.

Core legal questions

In this appeal, the Supreme Court was required to determine whether the Federal Court of Appeal erred in overturning a decision of the Immigration and Refugee Board. The outcome of the appeal hinges on the characterisation of the speech delivered by Léon Mugesera in Rwanda (paras. 1-2).

Specific legal rules and provisions

Immigration Act, 1985, Canada:

Section 19(1)(j) - Inadmissible persons
Section 27(1)(a.1)(ii), (a.3)(ii) and (g) - Reports on permanent residents

Criminal Code, 1985, Canada:

Section 7(3.76) - Crimes against humanity

(Repealed by: Crimes Against Humanity and War Crimes Act, 2000, Canada)
Section 319(1) and (2) - Public incitement of hatred
Section 464(a) - Counselling offence that is not committed

Court's holding and analysis

The Supreme Court first set out its order of reviewing the case: 1) considering the standard of review; 2) applying the appropriate standard of review to determine the facts (focusing on the interpretation of the contents of the speech; and 3) having determined the operative facts (what Mugesera said in the speech), the law must be applied to that speech to determine whether the legal requirements for a deportation order are met (para. 6).

Regarding the first step, the Court remarked that ‘[a]t the secondary level of appellate review, the court’s role is limited to determining whether the reviewing judge has chosen and applied the correct standard of review’; it was found that the FCA had failed at applying this standard, as it had ‘exceeded the scope of its judicial review function when it engaged in a broad-ranging review and reassessment of the IAD’s findings of fact. It set aside those findings and made its own evaluation of the evidence even though it had not been demonstrated that the IAD had made a reviewable error on the applicable standard of reasonableness’ (paras. 35-36).

Therefore, applying the correct standard of review, the Court found that it there were more than sufficient reasonable grounds to believe that Mugesera had incited murder, genocide and hatred, and that he had committed a crime against humanity. For these reasons, the appeal was allowed; the FCA appeal judgment was reversed and the deportation order of 11 July 1996 in respect of Mugesera was held to be valid (para. 180).

Instruments cited

Immigration Act, 1985, Canada.
Criminal Code, 1985, Canada.

Related cases

ICTR, The Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-A, Judgment, 1 June 2001.

Conseil d’Etat (France), Agathe Habyarimana, Case No. 311793, Decision, 16 October 2009.

Superior Court of Justice of Ontaria (Canada), Sa Majesté la Reine v. Jacques Mungwarere, Case No. 2011 CSON 1254, Inscription, 9 May 2011.

European Court of Human Rights, Ahorugeze v. Sweden, Case No. 37075/09, Judgment, 27 October 2011.

Additional materials

‘Leon Mugesera’, TRIAL.

‘Mugesera’, Canadian Centre for International Justice.

T. Henry, ‘Canadian high court says Rwandan accused of war crimes must be deported’, Jurist, 28 June 2005.

D. Shucosky, ‘No deportation of Rwanda war crimes suspect from Canada unless death penalty waived’, Jurist, 8 July 2005.

M. Rosen-Molina, ‘Rwanda calls on Canada to extradite genocide suspects’, Jurist, 31 August 2007.

S. Montgomery, ‘UN’s torture fears delay Rwandan’s deportation’, National Post, 11 January 2012.

H. Stemple, ‘Canada deports Rwanda war crimes suspect’, Jurist, 24 January 2012.

‘Canada deports Rwanda genocide suspect Leon Mugesera’, BBC News, 24 January 2012.

B. Van Schaack, ‘Mugesera Deported’, IntLawGrrls, 25 January 2012.

J. Cremeans, ‘Rwanda court charges genocide suspect’, Jurist, 3 February 2012.

The Canadian Press, ‘In Rwanda, ex-Quebecker’s genocide trial stokes ethnic tensions’, The Globe and Mail, 17 November 2013.

Social media links

‘Leon Mugesera goes on trial in Kigali’, kigaliwire.

W. A. Schabas, ‘Mugesera Case: Yet Another Twist in the Debate about the Rwandan Justice System’, PhD studies in human rights, 15 January 2012.

A. Lau, ‘Léon Mugesera: A Lesson in Trying Judicial Deference’, The Court, 27 February 2012.